Whilst in other statutes, the transition agreement is where you gloss over, here for Brexit, the transition is the most important bit because after 29th March 2019, without the ‘status quo’ stated in the transition, there will be no access to the EU institutions.
There is nothing in the Article 50 on the transition period, and therefore Article 50 has no legal competence for transition although it does say that any withdrawal agreement must bear in mind future relationships with EU.
There are three pillars to Brexit: 1) The withdrawal agreement, including transition 2) Divorce and 3) Future relations. In terms of future deals, the EU cannot do a free trade agreement with its own member, only with a third country. A way around this is to sign on the 30th Mar.
But they can’t do this either because: 1)guidelines in Art 50 did provide for this, 2)takes some time to negotiate, time we don’t have 3)it will be likely that FTAs (plural) will be adopted under a different legal basis, probably under Art 207 (Canada CETA) or Art 217 (Ukraine).
Most probable will be Article 218 procedure for FTA with a mixed agreement, which is an agreement agreed by both EU and also by member states - but there will need to be ratification by all. In sum, it’s going to take a while from 2019, 3 years (negotiate) + 1 year (ratification)
Hence, two years transition is not enough, a clause for extension of the transition period will be needed. However, per EU previously, it cannot exceed 3 years after the 2 years have lapsed because it cannot be a substitute for the EU membership.
Re: Domestic legal scene, the divorce needs to be given effect in the UK legislation. EU withdrawal bill currently going through the Houses of Parliaments to be debated. Expectation is that the Lords will not block the passage of the bill.
Hence, it becomes an Act which TURNS OFF the European Communities Act 1972, the Act which brought the UK into the EU.
The key pillars of this 1972 Act: 1) The principle of supremacy of EU law - If there is a conflict between EU law and International Law, EU law prevails 2) The principle of Direct Effect where the EU law becomes enforceable in the national courts.
The problem with TURNING OFF is that transition says we’ve got status quo, and that’s why we need a second bill in order to give effect to the transition- another bill called: “withdrawal and implementation Bill”. We need this bill to turn back on what’s turned off.
Under Henry VIII clauses, gives the executives significant powers to: 1) Amend secondary legislations AND 2) Amend Acts of parliament (primary law). This is very unusual, especially the ability to change primary law. There’s a lot of concern over the SCOPE of those powers.
HOWEVER, those powers are absolutely necessary because without those Brexit cannot be delivered effectively. 1000 statutory instruments will go through parliament as soon as withdrawal bill becomes an act. Some of these instruments are vastly complicated, e.g. financial services.
You wanted Brexit, this is Brexit.
The transition period will allow the EU to consider the equivalence decisions. However, certainty about this transition period will only come once the whole Withdrawal Agreement has been agreed and ratified. @MichelBarnier europa.eu/rapid/press-re…
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